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Brief in Support of Motion to Stay (COA)

STATE OF MICHIGAN

IN THE COURT OF APPEALS

______________________________________________________________________________

THOMAS R. OKRIE, et al.,

Plaintiffs, COA No. 319550

Court of Claims No. 13-93-MK

v HON. Deborah Servitto

STATE OF MICHIGAN,

GOVERNOR RICK SNYDER,

MICHIGAN DEPARTMENT

OF TECHNOLOGY, MANAGEMENT

AND BUDGET, OFFICE OF

RETIREMENT SERVICES,

STATE EMPLOYEES RETIREMENT

SYSTEM, MICHIGAN PUBLIC

SCHOOL EMPLOYEES RETIREMENT

SYSTEM, and MICHIGAN DEPARTMENT

OF TREASURY,

Defendants.

______________________________________________________________________

Gary P. Supanich (P45547)

LAW OFFICE OF GARY P. SUPANICH

Attorney for Plaintiffs

117 North First Street, Suite 111

Ann Arbor, MI 48104

(734) 276-656

www.michigan-appeal-attorney.com

Patrick M. Fitzgerald (P69964)

Joshua Booth (P53947)

Margaret Nelson (P30342)

MICHIGAN DEPARTMENT OF ATTORNEY GENERAL

State Operations Division

Attorneys for Defendants

P.O. Box 30754

Lansing, MI 48909

(517) 373-1162

_____________________________________________________________________

PLAINTIFFS' BRIEF IN SUPPORT OF THEIR MOTION FOR STAY OF PROCEEDINGS IN THE COURT OF CLAIMS PENDING THE DETERMINATION OF THE CONSTITUTIONALITY OF 2013 PA 164

TABLE OF CONTENTS

TABLE OF AUTHORITIES. i

INTRODUCTION...................................................... 1

ARGUMENT. 2

I. THE 1963 MICHIGAN CONSTITUTION DOES NOT ALLOW THE LEGISLATURE TO EXPAND THE JURISDICTION OF THE COURT OF COURT OF APPEALS TO INCLUDE THE COURT OF CLAIMS...... 2

A. The 1835 and 1850 Constitutions. 2

B. The 1908 Constitution. 3

C. The 1963 Constitution. 6

II. THE 1963 MICHIGAN CONSTITUTION DOES NOT ALLOW THE LEGISLATURE TO COMBINE THE OFFICE OF A JUDGE ON THE COURT OF APPEALS WITH THE OFFICE OF A JUDGE ON THE COURT OF CLAIMS...... 9

CONCLUSION AND RELIEF. 11

TABLE OF AUTHORITIES

Cases

Streeter v Paton, 7 Mich 341...................................... 2

Okrie et al v State of Michigan et al, Ct. of Claims Case No. 13-93-MK.................................................... 1

Nichols v Judge of Superior Court of Grand Rapids, 130 Mich 187 (1902).................................................. 1

In re Brewster Street Housing Site, 291 Mich 313 (1939)......................................................................... 2

Viculin v Department of Civil Service, 386 Mich 375 (1971) ...................................................................... 10

Evans v US Rubber Co, 379 Mich 457 (1967)........... 10

Giannotta v Governor, 71 Mich App 15 (1976)......... 10

In re Application of Governor, Jurisdiction of Court of Appeals, 381 Mich 1 (1968)................................. 8, 9

Midland Cogeneration Venture Limited Partnership v State of Michigan, 489 Mich 83 (2011)................... 8

McAvoy v H B Serman Co, 401 Mich 419 (1977)........ 8

Buback v Governor, 380 Mich 209 (1968)............... 6, 7

Attorney General, ex rel, Cook v O'Neill, 280 Mich 649 (1937)......................................................................... 4

Nichols v Judge of Superior Court of Grand Rapids, 130 Mich 187 (1902)................................................... 3

People ex rel Wexford County Prosecuting Attorney v Kearney, 345 Mich 680 (1956).................................... 4

Gray v Hakenjos, 366 Mich 588 (1962)...................... 4

In re Manufacturer's Freight Forwarding Co, 294 Mich 57 (1940)........................................................ 4, 9

Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311 (1977)........................................... 2

Constitutional Provisions

Const 1835, art 6, § 1................................................. 2

Const 1850, art 6, § 1................................................. 2

Const 1908, art 7, § 1................................................. 3

Const 1963, art 6, § 1................................................. 6

Const 1963, art 6, § 10............................................... 6

Const 1963, art 6, § 15............................................ 7, 9

Statutes

MCL 600.308.............................................................. 6

Other Authority

Convention Comment on Const 1963, art 1, § 6......... 6

2011 PA 38................................................................. 1

2013 PA 164...................................................... passim

INTRODUCTION

On July 9, 2013, Plaintiff Mr. Thomas Okrie, and other similarly situated retired state and public school employees, filed a Verified Class Action lawsuit in the Court of Claims (Okrie et al v State of Michigan et al, No. 13-93-MK) challenging the state taxation of their pensions pursuant to 2011 PA 38. This case was randomly assigned Judge Rosemarie Aquilina of the Ingham County Circuit Court. On November 13, 2013, 2013 PA 164 ("the Act") was signed into law by Governor Snyder, transferring the Court of Claims from the Ingham Circuit Court to the Court of Appeals, directing the Michigan Supreme Court to appoint four judges of the Court of Appeals to be judges of the Court of Claims for two-year renewable terms. On December 13, 2013, Plaintiffs filed a Petition in the Court of Appeals challenging the constitutionality of the Act. Among the questions presented in the Petition challenging the Act as violative of the separation of powers doctrine under the state constitution and the due process clauses under the state and federal constitutions are whether the 1963 Michigan Constitution allows the Legislature to expand the jurisdiction of the Court of Appeals to include the jurisdiction of the Court of Claims and thereby combine the office of a judge on the Court of Appeals with the office of a judge on the Court of Claims. Because there are compelling grounds showing 2013 PA 164 transferring the Court of Claims to the Court of Appeals as unconstitutional in violation of the 1963 Michigan Constitution, this Court should grant Plaintiffs' Motion to Stay the Proceedings as Judge Servitto lacks jurisdiction to act as a Court of Claims judge in this matter.

ARGUMENT

I. THE 1963 MICHIGAN CONSTITUTION DOES NOT ALLOW THE LEGISLATURE TO EXPAND THE JURISDICTION OF THE COURT OF COURT OF APPEALS TO INCLUDE THE COURT OF CLAIMS.

A. The 1835 and 1850 Constitutions

At the outset, it is important to underscore that "[t]he Michigan Constitution is not a grant of power to the Legislature as is the United States Constitution, but rather, it is a limitation on general legislative power." Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311, 317-318 (1977), citing In re Brewster Street Housing Site, 291 Mich 313 (1939). Before statehood, Michigan's first Constitution provided that "the judicial power shall be vested in one Supreme Court, and in such other courts as the legislature may from time to time establish." 1835 Const, art 6, § 1. That changed with the 1850 Constitution. As stated in Streeter v Paton, 7 Mich 341, 346 (1859):

Our present constitution was not the formation of a new government, but the continuation of a government formed under a previous constitution, whose supposed or real defects it was intended to correct; and in construing it we are bound to look to the distribution of judicial power under the old constitution, and to discover, if we can, the evil, if any, arising from that distribution, and intended to be corrected by the new constitution.

According to Streeter:

By courts, as the word is used in the constitution, we understand permanent organizations for the administration of justice, and not those special tribunals provided for by law, that are occasionally called into existence by particular exigencies, and that cease to exist with such exigencies.

Under our former constitution, the legislature had unlimited power to create inferior courts. In the exercise of this power the legislature, at the commencement of the state government, created a court of chancery, and circuit courts with powers, except in chancery, analogous to our present circuit courts. These, with the Supreme Court, probate courts, and justices' courts, established by the constitution, were the only courts at the commencement of the state government. . . . [Id. at 348-349]

Accordingly, as explained by the Supreme Court in Nichols v Judge of Superior Court of Grand Rapids, 130 Mich 187, 193-194 (1902):

The people were dissatisfied with the courts organized by the legislature, and, in the adoption of the new Constitution, made an important change by providing that:

The judicial power is vested in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the legislature in cities. Const 1850, art 6, § 1.

Thus, the unlimited power to create courts, given by the Constitution of 1835, was taken away the new Constitution, and the legislature was limited to the creation of "municipal courts of civil and criminal jurisdiction.

B. The 1908 Constitution

One-half century later, the 1908 Constitution retained the constitutional status of the Supreme Court, circuit courts, probate courts and justices of the peace, but allowed the Legislature to establish inferior courts of civil and criminal jurisdiction. Specifically, the 1908 Const, art 7, § 1 provided:

The judicial power shall be vested in one Supreme Court, circuit courts, probate courts, justices of the peace and such other courts of civil and criminal jurisdiction, inferior to the Supreme Court, as the legislature may establish by general law, by a two-thirds vote of the members elected to each house.

Interpreting the 1908 Constitution, the Supreme Court in Attorney General, ex rel, Cook v O'Neill, 280 Mich 649, 654 (1937) noted that pursuant to the separation of powers doctrine:

The judiciary is an independent department of the State government, deriving none of its judicial power from either of the other departments. * * * In a general way, the courts possess the entire body of judicial power. The other departments cannot properly assume to exercise any part of this power; it cannot be taken away by a legislative action, nor is the legislature permitted to interfere with the courts in the performance of their duties.

Because judicial power was exclusively entrusted to the judiciary by the Constitution, the other branches of government could not diminish, exercise or interfere with it, absent constitutional authorization. Id; see also People ex rel Wexford County Prosecuting Attorney v Kearney, 345 Mich 680 (1956); Gray v Hakenjos, 366 Mich 588 (1962). Accordingly, in In re Manufacturer's Freight Forwarding Co, 294 Mich 57, 69 (1940), the Supreme Court said about itself:

The jurisdiction of this court is fixed and defined by the Constitution. The legislative department cannot grant or withhold such jurisdiction. The question of review does not come within the original jurisdiction of this Court as defined by the Constitution. If this Court has jurisdiction at all, it must be in the nature of appellate jurisdiction, but the appellate jurisdiction is applicable only from the judgments, orders and decrees of courts of inferior jurisdiction and cannot lie from boards, bureaus and commissions acting in a legislative capacity. The Constitution (1908), art. 7, § 4, provides:

"The Supreme Court shall have a superintending control over all lower courts, and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo, and other original and remedial writs, and to hear and determine the same. In all other cases, it shall have appellate jurisdiction only." (Emphasis in original).

The Supreme Court then explained the nature of appellate jurisdiction:

"We cannot lose sight of the fact that appeals only lie from one court to another -- not from an executive officer to a court. There must be a competent judicial tribunal to pass upon a case before an appeal can be taken to a higher court." Ex parte Allen, 26 Ark. 9.

"It is, therefore, to our minds, manifest that the appellate jurisdiction of this court does not, and under the Constitution can never be made to extend to the proceedings or decision of any officer or tribunal whatever, other than the judicial proceedings or determinations of some court or justice of the peace vested with some portion of judicial power by or under the authority of the Constitution itself." Dunn v. State, 2 Ark. 229 (35 Am. Dec. 54).

As said by the supreme court of Ohio:

"We have no idea of an appeal, except from one court to another." Ex parte Logan Branch Bank, 1 Ohio St. 432.

"Under the practice act this court has appellate jurisdiction only in cases commenced in and tried by a court. Before the supreme court can exercise appellate jurisdiction in this case, it must appear that a final judgment has been rendered by the district court in an action or special proceeding commenced in that court, and that the judgment appealed from was rendered in an action or proceeding which the court had power to try and determine." Lyon County v. Esmeralda County, 18 Nev. 166 (1 Pac. 839).

"Under the laws of this State, we are only authorized to review the record and proceedings of inferior courts, officers, or tribunals acting in a judicial capacity, and exercising judicial functions." Esmeralda County v. Third Judicial District Court, 18 Nev. 438 (5 Pac. 64).

"An appeal in law is the removal of a matter or cause from an inferior to a superior court for the purpose of reviewing, correcting, or reversing the judgment or sentence of the inferior tribunal." Leach v. Blackely, 34 Vt. 134.

"The word 'appeal' in its technical and appropriate sense, means the taking of a suit or cause and its final determination from one court or jurisdiction after final judgment to another." Barlow v. Daniels & Co., 25 W. Va. 512, 521.

"The term 'appeal' was unknown to the common law. It belonged wholly to courts of chancery, and means in its technical and appropriate sense the removal of a suit, and its final determination, from an inferior court, after final judgment in that court, to a superior court, and placing the case in the latter court, to be again tried de novo upon its merits, just as though it had never been tried in the inferior court." Fouse v. Vandervort, 30 W. Va. 327 (4 S.E. 298). [Id. at 69-70].

C. The 1963 Constitution

The present 1963 Constitution created the Court of Appeals as an intermediate appellate court between the Supreme Court and the circuit court, probate court and other courts of limited jurisdiction. Convention Comment on Mich Const, art 6, § 1. Specifically, Article 6, § 1, provides:

The judicial power of the State is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house.

As explained by the Court in Buback v Governor, 380 Mich 209, 226 (1968):

For the first time, the judicial article of the 1963 Constitution (article 6, § 1) speaks of the judiciary in terms of one court of justice. That one court of justice is the judicial branch. The courts which make up the one court of justice do not exercise identical or corresponding jurisdiction. Each has its particular level of judicial administration. But since all courts form but one court of justice to which the judicial power has been granted by the Constitution, it seems clear all courts perform solely by the exercise of judicial power. . . . (Emphasis added.)

As for the jurisdiction of the Court of Appeals within this constitutionally-designed multi-level court system, Const 1963, art 6, § 10 provides:

The jurisdiction of the court of appeals shall be provided by law and the practice and procedure therein shall be prescribed by rules of the supreme court. (Emphasis added.)

Pursuant to the Constitution, the Legislature thus enacted § 308 of the Revised Judicature Act, setting forth the constitutionally-mandated appellate jurisdiction of the Court of Appeals. MCL 600.308. Besides this original grant of appellate jurisdiction, the Legislature has also assigned the Court of Appeals with original jurisdiction to issue prerogative and remedial writs or orders, as provided by the rules of the Supreme Court.

One of the questions presented here is whether the Constitution allows the Legislature to combine the Court of Appeals' appellate and supervisory jurisdiction with the jurisdiction of a legislatively-created inferior court, i.e., the Court of Claims. This appears to turn on the meaning of the phrase "provided by law," which was addressed by the Court in Buback interpreting 1963 Const, art 6, § 15, as follows:

The Constitution of 1963 does not define the entire jurisdiction of probate courts. This responsibility is left to the legislature by article 6, § 15:

[. . . ] The jurisdiction, powers and duties of the probate court and of the judges thereof shall be provided by law.

The committee on style and drafting of the constitutional convention of 1961 made a distinction in the use of the words "prescribed by law" and the words "provided by law." Where "provided by law" is used, it is intended that the legislature shall do the entire job of implementation. Where only the details were left to the legislature and not the overall planning, the committee used the words "prescribed by law." See 2 Official Record, Constitutional Convention of 1961, pp 2673, 2674.

The provision of the 1963 Constitution last above quoted placed the responsibility on the legislature to draft the law but did not grant authority for departure from the requirements and proscriptions of the Constitution. It does not have the effect of permitting disregard of the separation of powers article. [Id. at 226-227] (Emphasis added).

As such, Buback interpreted "provided by law" as including constitutional constraints limiting the Legislature's power in implementing the jurisdiction, powers and duties of the probate court and its judges.

The same holds true here as well with regard to the Legislature's implementation of the jurisdiction of the Court of Appeals, pursuant to the Michigan Constitution. Simply put, the Constitution "permits the Legislature only to prescribe the details of" the Court of Appeals' appellate and original jurisdiction, not to expand its constitutionally-created jurisdiction to include the jurisdiction of a legislatively-created trial-level court, such as the Court of Claims. See Midland Cogeneration Venture Limited Partnership v State of Michigan, 489 Mich 83, 94 (2011), citing McAvoy v H B Serman Co, 401 Mich 419 (1977). While the 1963 Constitution does not define the entire appellate jurisdiction of the Court of Appeals, "[i]t is beyond question that the purpose of the creation of the Court of Appeals was to create an intermediate appellate court to provide speedy, adequate, and final review of the majority of appeals of cases from the trial courts of this State." In re Application of Governor, Jurisdiction of Court of Appeals, 381 Mich 1, 19 (1968) (J. Adams's opinion for denial of jurisdiction).

Thus, the Constitution does not allow the Legislature to redesign by statute the constitutional structure of our court system, as it did here with the enactment of 2013 PA 164. Obviously, the Court of Appeals is called by that name for a reason - to be an intermediate appellate court between the Supreme Court and other inferior courts. Because appellate courts exercise appellate jurisdiction only in cases commenced and tried before lower courts whose judgments are being appealed, the Legislature does not have the power to transfer the Court of Claims to the Court of Appeals or to direct the Supreme Court to designate four judges on the Court of Appeals to occupy two-year renewable terms as judges on the Court of Claims See In re Manufacturer's Freight Forwarding Co, supra. As recognized by Justice Adams in his opinion denying jurisdiction in In re Application of Governor, Jurisdiction of Court of Appeals, supra, 381 Mich at 19, "it is the jurisdiction of the court that controls the power of a judge to proceed under the statute." (Emphasis in original).

II. THE 1963 MICHIGAN CONSTITUTION DOES NOT ALLOW THE LEGISLATURE TO COMBINE THE OFFICE OF A JUDGE ON THE COURT OF APPEALS WITH THE OFFICE OF A JUDGE ON THE COURT OF CLAIMS.

Given the constitutionally-tiered structure of our present court system, the Constitution also does not allow the Legislature to combine the office of a Court of Appeals judge with the office of a Court of Claims judge - a judicial office of limited jurisdiction. Here again, it is instructive to examine Article 6, § 15 of the 1963 Michigan Constitution, which provides in pertinent part:

In each county organized for judicial purposes there shall be a probate court. The legislature may create or alter probate court districts of more than one county if approved in each affected county by a majority of the electors voting on the question. The legislature may provide for the combination of the office of probate judge with any judicial office of limited jurisdiction within a county with supplemental salary as provided by law. . . . (Emphasis added.)

While the Constitution explicitly provides that the Legislature may combine the office of a probate judge "with any judicial office of a limited jurisdiction within a county," it notably made no such provision for combining the office of a Court of Appeals judge with another judicial office of a limited jurisdiction, e.g., a legislatively-created court such as the Court of Claims. This significant omission implies that the Constitution does not allow the Legislature by statute to combine the office of a judge on the Court of Appeals with the office of judge on the Court of Claims, or any office of a judge on a court of limited jurisdiction created by the Legislature. See Giannotta v Governor, 71 Mich App 15, 18 (1976) (noting that "the Supreme Court has approved the interpretative method of comparing related provisions of the law in order to reach an understanding of what the drafters actually intended by their use or omission of terms"), citing Viculin v Department of Civil Service, 386 Mich 375, 390-392 (1971) and Evans v US Rubber Co, 379 Mich 457, 460-463 (1967).

CONCLUSION AND RELIEF REQUESTED

It goes without saying that the Legislature may not repeal a constitutional provision by statute. To amend the Michigan Constitution requires a voter initiative or a constitutional convention. In short, because the plain language of the Michigan Constitution controls, any doubts about whether the Act may allow the Supreme Court to appoint or assign a judge elected to sit on the Court of Appeals to sit at the same time on a permanent basis for a renewable two-year term as a member of the Court of Claims must be given to the voters of the State of Michigan to decide. Finally, this is not the only case in which the Michigan Legislature has ignored the constitutional requirement for an act to take immediate effect. Specifically, in this case, the vote in the House of Representatives (57 votes in favor, 52 opposed) failed to satisfy the two-thirds vote requirement for an act to take immediate effect. Simply put, the Legislature violated the Michigan Constitution's express limitation on its power to give laws immediate effect. It is time to reject the power of the fait accompli and to return to the democratic rule of law in Michigan. For these and the foregoing reasons presented here and in Plaintiffs' Petition, this Court should grant the Motion to Stay Proceedings in this matter in the Court of Claims, pending a determination of the constitutionality of 2013 PA 164.

Respectfully Submitted,

By: ____________________________

Gary P. Supanich (P45547)

Attorney for Plaintiffs

117 N. First Street, Suite 111

Ann Arbor, MI 48104

(734) 276-6561

Dated: March 11, 2014

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